Case Comment

National Electrical Products Corp. v.
Industrial Electric Products Ltd.

citation(s): [1939] Ex. C.R. 282, [1939] 3 D.L.R. 209, [1940] S.C.R. 406, per Duff, C.J.C.

copyright 1997 Donald M. Cameron, Aird & Berlis




The Decision

At p.409:

"As to infringement, it cannot be disputed that if a purchaser follows the directions as to the manner in which the bushings are to be used there is no infringement. There is no ground for holding that this direction is colourable or that it is given in the expectation that it will be disregarded. In these circumstances I think the proper conclusion of fact is that the appellants' invention has not been taken.

There is no evidence of agency or of partnership and on the facts one could not properly find, to borrow the language of Vaughan Williams, L.J. in Dunlop Pneumatic Tyre Co. Ltd. v. David Moseley & Sons Ltd., and relationship between the parties of "principals in the first degree" or of "aider and abettor".

I must not be supposed to give any adherence to the argument that the existence of this latter relationship would be sufficient. The existence of any one of these relationships is, of course, in every case a question of fact which must be determined upon the evidence in the particular case."


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